Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2005-417

SEPTEMBER
TERM, 2006

Carl Wetherby and Marina Wetherby } APPEALED
FROM:

}

v. } Franklin
Superior Court

}

Leland Vincent }

} DOCKET
NO. S331-03 Fc

Trial Judge:
Ben Joseph

In
the above-entitled cause, the Clerk will enter:

Defendant
Leland Vincent appeals from the trial court=s
denial of his motion for relief from judgment. He argues that: (1) the trial
court erred as a matter of law in ruling that consideration of his motion was
precluded by this Court=s
decision on an earlier Rule 60(b) motion; and (2) he is entitled to relief
because the underlying judgment was based on a stipulation that was never read
nor explained to him by prior counsel. We reverse and remand.

The underlying
facts are largely set forth in our previous decision on defendant=s first Rule 60(b) motion.
See Wetherby v. Vincent, 2004-014 (September 1, 2004) (three-justice
panel). We briefly restate them here. In July 2003, plaintiffs sued
defendant, who was then approximately eighty years old and had difficulty
hearing and seeing. Plaintiffs alleged that defendant and his elderly sister,
who died in May 2003, had reneged on a written contract to sell plaintiffs
their home for $52,000. Plaintiffs sought a writ of attachment and specific
performance of the contract. Through counsel, defendant responded to the
complaint by filing a motion for summary judgment. One day before the
attachment hearing, the parties filed a stipulation with the court, agreeing
that the court could Aresolve
the attachment hearing issue as well as the lawsuit on the merits by
consideration and ruling upon the parties=
summary judgment pleadings.@
Plaintiffs then responded to the motion for summary judgment, asserting that
they were entitled to relief under the doctrine of promissory estoppel.
Although ordered by the court to respond to this argument, defendant=s attorney failed to do so,
and the court granted summary judgment to plaintiffs. Shortly thereafter,
defendant=s attorney
filed a motion for relief from judgment, asserting that he had assumed that
under V.R.C.P. 56(c)(1) he was entitled to additional time in which to file a
supplemental motion for summary judgment. The court denied the motion.

Defendant
appealed to this Court, asserting that the trial court had erred by construing
the parties=
stipulation as restricting the legal issues that the parties could raise and by
concluding that his opposition to plaintiffs=
motion for summary judgment was untimely. Vincent, 2004-014, at 2. We
rejected this argument, and affirmed the trial court=s decision. We explained that the parties had
agreed that the case could be decided on their motions for summary judgment.
The court gave defendant a limited amount of time to file a response to
plaintiffs= motion.
When he failed to do so, and further failed to seek additional time for a
response, the court entered its order based on the parties= cross-motions for summary
judgment, just as the parties contemplated in their stipulation. Then, and
only then, did defendant attempt to file a renewed summary judgment motion with
a completely new theory alleging facts that would have been known to him when
the litigation started. Under these circumstances, we concluded, the trial
court acted well within its discretion in denying defendant=s motion for relief from
judgment. Id. at 3.

Shortly after
our decision was issued, defendant, with the assistance of new counsel, filed a
second motion for relief from judgment with the trial court. Defendant
asserted that he was never informed of, nor did he consent to, the terms of the
stipulation. He argued that he was entitled to relief because no attorney has
authority to do any act that has the effect of irrevocably renouncing or
barring his or her client=s
right of action without the client=s
permission, and Rule 60(b) provides the court with authority to grant relief
from judgment in circumstances where the need for truth outweighs the need for
finality. In lieu of a hearing, the parties submitted agreed-upon facts to the
trial court. They agreed that: (1) defendant did not read the stipulation
because of his failing eyesight; (2) his attorney did not read or explain fully
the stipulation to him; (3) defendant thus did not understand that by signing
the stipulation, he would be waiving his rights to present all but one defense
and all counterclaims, as well as his right to an evidentiary hearing; and (4)
had counsel and/or defendant known these facts, the stipulation would not have
been signed. In a September 2005 entry order, the trial court denied the Rule
60(b) motion, finding that it was Abased
on contentions that were considered and rejected@
by this Court. This appeal followed.

Defendant
first argues that the trial court erred in ruling that consideration of the
issues raised in his second Rule 60(b) motion was precluded by this Court=s decision on the prior
Rule 60(b) motion. He argues that the doctrine of issue preclusion does not
apply, and that the court therefore erred as a matter of law in denying the
motion. We agree.

Rule 60(b)
allows the court to relieve a party from a final judgment for mistake,
inadvertence, surprise, or excusable neglect or any other reason justifying
relief from the operation of the judgment. V.R.C.P. 60(b). While the rule Awill not serve to relieve a
party from its free, calculated and deliberate choices, it is invoked to
prevent hardship and injustice and thus shall be liberally construed and
applied.@Bingham
v. Tenney, 154 Vt. 96, 99 (1990). The trial court has discretion in ruling
on a Rule 60(b) motion, and its decision Awill
stand on review unless the record clearly and affirmatively indicates that such
discretion was withheld or otherwise abused.@Id. at 99. In this case, we conclude that the court abused its
discretion because the basis offered for its decision was incorrect as a matter
of law. See Courtyard Partners v. Tanner, 157 Vt. 638, 639 (1991)
(mem.) (although trial court=s
ruling on a Rule 60(b) motion is discretionary, this Court may remand case to
prevent failure of justice when warranted by the circumstances).

The trial
court=s decision
appears to rest on the doctrine of collateral estoppel, or issue preclusion.
That doctrine Abars
the subsequent re-litigation of an issue which was actually litigated and
decided in a prior case between the parties resulting in a final
judgment on the merits, where that issue was necessary to the resolution of the
action.@Berlin
Convalescent Ctr., Inc. v. Stoneman, 159 Vt. 53, 56 (1992) (emphasis added,
internal quotation marks and citation omitted). As reflected by the language
cited above, the doctrine does not apply to subsequent filings in the same
action.* See, e.g., Studiengesellschaft
Kohle v. Eastman Kodak Co., 713 F.2d 128,131 (5th Cir. 1983) (Aissue preclusion is applicable
only in subsequent actions, not within the same action@); cf. G. & C. Merriam Co. v. Saalfield,
241 U.S. 22, 29 (1916) (AThe
doctrine of res judicata furnishes a rule for the decision of a subsequent case
between the same parties or their privies respecting the same cause of action.
Obviously, the rule for decision applies only when the subsequent action has
been brought.@).

Even assuming
that the doctrine did apply, however, the issue before the trial court was not
the same as that previously decided by this Court. See Berlin Convalescent
Ctr., Inc., 159 Vt. at 56-57 (identifying elements of issue preclusion,
including requirement that issue be Athe
same as that raised in the later action@).
As stated above, defendant=s
first Rule 60(b) motion was based on his assertion that the trial court erred
by construing the parties=
stipulation as restricting the legal issues that the parties could raise and by
concluding that his opposition to plaintiffs=
motion for summary judgment was untimely. Vincent, 2004-014, at 2. In
the current motion, defendant asserts that he did not knowingly agree to the
stipulation, and that his attorney was consequently without authority to
relinquish his right of action without his consent. These issues are not the
same. Although we conclude that the grounds offered by the court in support of
its decision are unavailing, we decline defendant=s
request that we enter grant the motion as a matter of law in this appeal. The
trial court has wide discretion in considering Rule 60(b) motions, and it
should evaluate the merits of the request in the first instance. We therefore
reverse the court=s
decision, and remand it for reconsideration on the merits.

Reversed
and remanded.

BY THE COURT:

_______________________________________

Paul L. Reiber,
Chief Justice

_______________________________________

Denise R.
Johnson, Associate Justice

_______________________________________

Brian L. Burgess, Associate Justice

* We reject plaintiffs= contention
that we should not consider this issue because it was not directly raised by
defendant below. Even if the issue was not specifically raised below, it
formed the basis of the trial court=s decision, and this Court may consider it sua
sponte. Cf. Merrilees v. Treasurer, State of Vermont, 159 Vt. 623, 623
(1992) (Court considered issue of res judicata sua sponte, noting that Aample and persuasive precedent allows a court to raise res judicata on
its own where the parties have failed to raise it and consequently waived the
right to do so@).